Sunday, 3 January 2021

Could prosecution against the accused under NDPS Act be vitiated if police fail to comply S 42 of NDPS Act?

 This is an appeal impugning an order and judgment dated 15-5-2004

passed by Learned Additional Sessions Judge Cum – Special Judge for NDPS

Act, Pandharpur, acquitting all the accused of offence punishable under

Section 20(b)(ii)(c) of Narcotic Drugs and Psychotropic Substance Act 1985 (NDPS Act).

Turning to the facts of the present case, looking from any angle,

i.e., whether the officer concerned, for the purposes of Section 42(1)

of the NDPS Act, was SDPO, Shri Shekhar, or it was Police Inspector,

P.W. 6 Raut, clearly there has been total noncompliance of Section 42.

It deserves to be noticed that SDPO, Shri Shekhar was not examined as

a witness by the prosecution. Further, as already noticed, the

information to immediate official superior, namely, SP, was given on

telephone only. According to P.W. 6, no record of any such information

was prepared or kept, or if it was so prepared, it was not produced by

the prosecution for the reasons best known to it. Exhibit 28 though

records that intimation in writing was given to superiors, no such

writing has been produced. This very document, in fact, notices that

SDPO Shekhar was dealing with the matter. It was at his direction that

the police party went to the residence of the appellant. He is stated to

have told P.W. 6 to inform his immediate superior, namely, SP, who is

said to have been informed on telephone, as per the testimony of P.W.

6, and in writing, as per Exhibit 28, though none was produced. In

fact, there has been non-compliance both of Sub-section (2) and Subsection

(1) of Section 42 of the NDPS Act. On the facts of the present

case, Exhibit 28 cannot be pressed into service to show compliance of

Section 42(1) of the NDPS Act. It is only a document recording and

showing departure of the police party from the Police Station. It does

not record the reason of belief contemplated by Section 42(1) of the

NDPS Act. Alternatively, assuming that the officer to whom the

information was given about the appellant selling narcotic drug at his

residence was P.W. 6, in that eventuality, he was required to record

reasons to believe and was required to send a copy thereof to the

immediate official superior in terms of Section 42(2) of the NDPS Act.

In fact, P.W. 6 does not even claim to be an officer to whom such

information was given. According to P.W. 6, SDPO told him that he

should inform about the receipt of information to SP, which he

informed to SP on telephone. On these facts, we find no substance in

the contention of the learned Additional Public Prosecutor that since

information was given to P.W. 6 by SDPO Shekhar, on the facts and

circumstances of the case it was neither necessary to comply with

Section 42 of the NDPS Act, nor there has been substantial compliance

thereof. Section 42 of the NDPS Act is mandatory. The object of the

NDPS Act is to make stringent provisions for control and regulation of

operations relating to those drugs and substances. At the same time, to

avoid harm to the innocent persons and to avoid abuse of the

provisions by the officers, certain safeguards are provided which in the

context have to be observed strictly. Therefore, these provisions make

it obligatory that such of those officers mentioned therein, on

receiving an information, should reduce the same to writing and also

record reasons for the belief while carrying out arrest or search as

provided under the proviso to Section 42(1), and to that extent, they

are mandatory. Consequently, the failure to comply with these

requirements affects the prosecution case and, therefore, vitiates the

trial. [See Balbir Singh's case (supra)].

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1154 OF 2004

The State of Maharashtra  V/s. Suabai Narhari Babar 


CORAM : K.R.SHRIRAM, J.

DATED : 18th DECEMBER 2020


1 This is an appeal impugning an order and judgment dated 15-5-2004

passed by Learned Additional Sessions Judge Cum – Special Judge for NDPS

Act, Pandharpur, acquitting all the accused of offence punishable under

Section 20(b)(ii)(c) of Narcotic Drugs and Psychotropic Substance Act 1985

(NDPS Act).

2 Apart from the failure of the prosecution on merits, the Trial Court

has also observed that the prosecution has not complied with the mandatory

provisions of Section 42 of the NDPS Act. Section 42 of the NDPS Act reads

as under:

“42. Power of entry, search, seizure and arrest without warrant or

authorisation.— (1) Any such officer (being an officer superior in

rank to a peon, sepoy or constable) of the departments of central

excise, narcotics, customs, revenue intellegence or any other

department of the Central Government including para-military forces

or armed forces as is empowered in this behalf by general or special

order by the Central Government, or any such officer (being an officer

superior in rank to a peon, sepoy or constable) of the revenue, drugs

control, excise, police or any other department of a State Government

as is empowered in this behalf by general or special order of the State

Government, if he has reason to believe from persons knowledge or

information given by any person and taken down in writing that any

narcotic drug, or psychotropic substance, or controlled substance in

respect of which an offence punishable under this Act has been

committed or any document or other article which may furnish

evidence of the commission of such offence or any illegally acquired

property or any document or other article which may furnish evidence

of holding any illegally acquired property which is liable for seizure or

freezing or forfeiture under Chapter VA of this Act is kept or

concealed in any building, conveyance or enclosed place, may

between sunrise and sunset,—

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any

obstacle to such entry;

(c) seize such drug or substance and all materials used in the

manufacture thereof and any other article and any animal or

conveyance which he has reason to believe to be liable to confiscation

under this Act and any document or other article which he has reason


to believe may furnish evidence of the commission of any offence

punishable under this Act or furnish evidence of holding any illegally

acquired property which is liable for seizure or freezing or forfeiture

under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person

whom he has reason to believe to have committed any offence

punishable under this Act:

Provided that in respect of holder of a licence for manufacture of

manufactured drugs or psychotropic substances or controlled

substances, granted under this Act or any rule or order made

thereunder, such power shall be exercised by an officer not below the

rank of sub-inspector.

Provided that if such officer has reason to believe that a search

warrant or authorisation cannot be obtained without affording

opportunity for the concealment of evidence or facility for the escape

of an offender, he may enter and search such building, conveyance or

enclosed place at any time between sunset and sunrise after recording

the grounds of his belief.

(2) Where an officer takes down any information in writing under

sub-section (1) or records grounds for his belief under the proviso

thereto, he shall within seventy-two hours send a copy thereof to his

immediate official superior.”

3 The Learned APP in all fairness stated that the findings of the Trial

Court in Paragraphs 25 and 26 of the impugned judgment are correct. The

Learned APP handed over to the court the judgment of the Apex Court in

Dalel Singh Vs. State of Haryana1 in which, the court has quoted paragraph

12 of the judgment rendered by Constitution Bench of Apex Court in Karnail

Singh Vs. State of Haryana2 , in which it is stated “…….. total noncompliance

of requirements of sub-sections (1) and (2) of Section 42 is

impermissible, delayed compliance with satisfactory explanation about the

delay will be acceptable compliance of Section.” In this case, it is not even

the prosecution’s case that there was a compliance albeit a bit later. The

1(2010) 1 SCC 149

22009 (10) SCALE 255


court has correctly observed that there was total non compliance.

4 P.W.-12 – Sharad Ramrao Thonge Patil is the Investigating Officer, who

has deposed that when he was at Akluj he had received information that

accused no.1- Subabai Babar had brought and kept some bags containing

ganja in a tin shed opposite her house in Ganesh Nagar, Shirpur. PW.-12 has

further stated that they had gone to the police station, Akluj and entered

this information in the station diary. P.W.-12 has thereafter deposed how he

arranged for two panchas and a person to weigh the ganja that they may

collect after the raid. Under Section 42, the concerned officer, if he has

reason to believe from personal knowledge or any information received that

any narcotic drugs or psychotropic substance or controlled substance in

respect of which an offence punishable under the Act has been committed,

he shall take down the same in writing. There is no evidence that the

information received was reduced in writing by P.W-12. Section 42(2) of the

NDPS Act further provides, where an officer takes down any information in

writing under Sub-Section (1) or records grounds for his belief under the

proviso thereto, he shall forthwith send a copy thereof to his immediate

official superior. This has also not been done and accepted so because there

is no evidence that P.W-12 reduce to writing the information that he had

received about accused no.1 that she has brought and kept some bags

containing ganja in the tin shed opposite her house in Ganesh Nagar,

Shirpur. P.W.-12 further deposed that on entering the information in the

station diary he had made a telephone call to S.P., Solapur and


communicated to him the information. Entering the information in station

diary and communicating to the immediate official is not strict compliance

of mandatory provisions of Section 42 of NDPS Act. Section 42 (2) requires

P.W-12 to send the copy of the information that he has reduced in writing,

which has not been complied with. Bombay High Court in Gangaram Rama

Gundkar & Anr. Vs. The State of Maharashtra3 has held that the provisions

of Section 42 are mandatory and non-compliance is fatal to prosecution. In

that case, the prosecution submitted that Investigating Officer sent wireless

message to immediate official superior in respect of the information entered

by him in the station diary for showing compliance of Section 42(2) of the

Act. The court held that even that was not sufficient compliance with the

mandatory provisions of Section 42(2) of the Act and a wireless message

would be on the same footing as an oral information. Bombay High Court

in Sayed Yusuf Syed Noor Vs. State of Maharashtra4 was considering the

situation identical to the case at hand. In the said case also, diary entry was

made and information to immediate official superior, namely S. P. was given

on telephone only. In paragraphs 6, 7, 8 and 9 the court has held as under :-

6. Section 42(1) of the NDPS Act, inter alia, postulates the concerned

officer, if he has reason to believe from personal knowledge or

information given by any person and taken down in writing, that any

narcotic drug, in respect of which an offence punishable under

Chapter IV has been committed, he may enter such premises, conduct

search and effect seizure and arrest without warrant or authorisation.

Section 42(2) stipulates that where an officer takes down any

information in writing under Sub-Section (1) or records grounds for

his belief under the proviso thereto, he shall forthwith send a copy

thereof to his immediate official superior. Section 42 has been held to

be mandatory (See State of Punjab v. Balbir Singh 1994 (3) SCC 99.

3 2002 ALL MR (cRI) 1356

4 2016 (1) Bom.C.R. (Cri) 270


7 Turning to the facts of the present case, looking from any angle,

i.e., whether the officer concerned, for the purposes of Section 42(1)

of the NDPS Act, was SDPO, Shri Shekhar, or it was Police Inspector,

P.W. 6 Raut, clearly there has been total noncompliance of Section 42.

It deserves to be noticed that SDPO, Shri Shekhar was not examined as

a witness by the prosecution. Further, as already noticed, the

information to immediate official superior, namely, SP, was given on

telephone only. According to P.W. 6, no record of any such information

was prepared or kept, or if it was so prepared, it was not produced by

the prosecution for the reasons best known to it. Exhibit 28 though

records that intimation in writing was given to superiors, no such

writing has been produced. This very document, in fact, notices that

SDPO Shekhar was dealing with the matter. It was at his direction that

the police party went to the residence of the appellant. He is stated to

have told P.W. 6 to inform his immediate superior, namely, SP, who is

said to have been informed on telephone, as per the testimony of P.W.

6, and in writing, as per Exhibit 28, though none was produced. In

fact, there has been non-compliance both of Sub-section (2) and Subsection

(1) of Section 42 of the NDPS Act. On the facts of the present

case, Exhibit 28 cannot be pressed into service to show compliance of

Section 42(1) of the NDPS Act. It is only a document recording and

showing departure of the police party from the Police Station. It does

not record the reason of belief contemplated by Section 42(1) of the

NDPS Act. Alternatively, assuming that the officer to whom the

information was given about the appellant selling narcotic drug at his

residence was P.W. 6, in that eventuality, he was required to record

reasons to believe and was required to send a copy thereof to the

immediate official superior in terms of Section 42(2) of the NDPS Act.

In fact, P.W. 6 does not even claim to be an officer to whom such

information was given. According to P.W. 6, SDPO told him that he

should inform about the receipt of information to SP, which he

informed to SP on telephone. On these facts, we find no substance in

the contention of the learned Additional Public Prosecutor that since

information was given to P.W. 6 by SDPO Shekhar, on the facts and

circumstances of the case it was neither necessary to comply with

Section 42 of the NDPS Act, nor there has been substantial compliance

thereof. Section 42 of the NDPS Act is mandatory. The object of the

NDPS Act is to make stringent provisions for control and regulation of

operations relating to those drugs and substances. At the same time, to

avoid harm to the innocent persons and to avoid abuse of the

provisions by the officers, certain safeguards are provided which in the

context have to be observed strictly. Therefore, these provisions make

it obligatory that such of those officers mentioned therein, on

receiving an information, should reduce the same to writing and also

record reasons for the belief while carrying out arrest or search as

provided under the proviso to Section 42(1), and to that extent, they

are mandatory. Consequently, the failure to comply with these

requirements affects the prosecution case and, therefore, vitiates the

trial. [See Balbir Singh's case (supra)].

8 Reference may also be made to the two decisions on which reliance

has been placed by the learned Counsel for the appellant. The first of

such decisions is that of Mahinder Kumar v. State, Panaji, Goa, 1999


SCC (Cri) 79, where the Supreme Court held that since the officer

had, admittedly, not recorded the grounds of his belief at any stage of

the investigation subsequent to his realising that the accused persons

were in possession of Charas and did not forward a copy of the

grounds to his superior officer, as required by Section 42(2) of the

NDPS Act because he had not made any record under the proviso to

Section 42(1), as such the prosecution had to fail. The second is a

Division Bench decision of this Court in Lamin Bojang v. State of

Maharashtra, 1997 Cri. LJ 513, holding that forwarding of the

information under Section 42(2) of the NDPS Act was mandatory and

the written documentary information is to be forwarded to the

superior officer and not oral information and that the provisions had

to be strictly complied with, and the question whether the prejudice is  caused to the accused or not is entirely extraneous.

9 In view of our aforesaid conclusion about the non-compliance of

Section 42 of the NDPS Act, the trial of the appellant stands vitiated

and, consequently, the conviction and sentence of the appellant is set

aside. In this view, we direct forthwith release of the appellant, if not

wanted in some other case. In case he has paid fine, the same shall be

refunded to him.”

The court has held that the officer should not only reduce information

received to writing but also record reasons for the belief while carrying out

arrest or search as provided under the proviso to Section 42(1) and to that

extent, they are mandatory. Failure to comply with these requirements

would affect the prosecution’s case and vitiate the trial. Prosecution has

filed station diary in the instant case at Exhibit 47. Diary entered only states

that P.W.-12 has received information that accused no.1 is selling ganja from

the tin shed in front of her house at Gandhi Nagar, Shirur. The reasons for

belief etc. are not noted down. Even the entire address of accused no.1 is

not mentioned. In Gangaram Rama Gundkar (Supra) the court observed

that such entry in the station diary was also not in compliance with

provisions of Section 42.

5 Since this mandatory provision of Section 42 of the NDPS Act has not been followed in the instant case, the trial itself is vitiated. In view of this, I  am not dealing with the demerits in the prosecution’s case having  considered the evidence or non compliance of Section 55 of NDPS Act

which, Learned APP states in fairness has not been complied with. Of

course, Section 55 is not mandatory but non compliance is a significant

lacuna, which also affects the prosecution’s case.

6 In the circumstances, in my view, the opinion of the Trial Court cannot

be held to be illegal or improper or contrary to law. The order of acquittal,

in my view, need not be interfered with.

7 Appeal dismissed.

(K.R. SHRIRAM, J.)

Meera Jadhav

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